Peruta vs. San Diego

[Al Norris]

This is going to be rather long, because if you are not familiar with guns (and especially with the gun laws in California) you will not understand the importance of this message, so I really hope you read this.

In CA, you can apply for what is known as a concealed carry permit, after jumping through some legal hoops. Under CA law, the final decision is left up to the County Sheriff. Part of the CA law holds that you must have 'Good Cause'. Good Cause is not defined and is left up to the determination of the individual Sheriff. On a practical level, those counties that are generally rural in nature allow most of their citizens to acquire the permit. Urban counties, on the other hand, issue very few if any permits.

This simply means that in some counties, saying that you want a concealed carry permit for self defense (your 'Good Cause') will be all that is needed. In others, you will need a reason that differentiates you from the general citizenry.

Six years ago (Oct. 2009), A man by the name of Edward Peruta, applied for and was denied a permit in the County of San Diego. He sued in Federal Court for a civil rights violation under the Second Amendment (based upon the Supreme Court Cases in Heller and McDonald. In 2008, Heller ruled that self defense was at the core of the right. McDonald (June 2009) ruled that the right was fundamental and applied it to the States via incorporation of the 14th amendment). The District Court, in a summary judgment, dismissed his claim. He appealed. The dismissal was in large part due to the law that said a citizen could openly carry a pistol (for self defense), albeit unloaded. Therefore, citing that since he could carry openly, his right was not infringed.

Between the time of the District Court judgment and the appeals court briefings, the State of California banned the practice of openly carrying a firearm (except for certain exceptions... like hunting).

The panel on the appeals court (federal appeals are judged by a 3 judge panel) wanted to be briefed on how this new development impacted the case.

After all the briefings were in and oral arguments were made, the Circuit Court rendered its opinion. They overturned the judgment of the district court and said that because obtaining a concealed carry permit was the only manner in which the second amendment guarantee to bear arms was legal, that the policy (not the law itself, only the practice of the San Diego County Sheriff) of denying a permit for the purpose of self defense was unconstitutional.

That was January of 2015.

One (or more) of the judges on the circuit, didn't like that decision and called for an En Banc panel to rehear the case. Last Thursday, 9 June, the decision of the En Banc Court was published. Now we come to the meat of this post.

The decision was expected, so in that light, I was not disappointed. What did surprise me was the breadth of the decision, as I will show in just a moment. First, let's look at at what this En Banc court signaled, right at the start (page 19).

While Plaintiffs base their argument on the entirety of California's statutory scheme, they allege only that they have sought permits to carry concealed weapons, and they seek relief only against the policies requiring good cause for such permits. Notably, Plaintiffs do not contend that there is a free-standing Second Amendment right to carry concealed firearms.

We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here. Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public. Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.

The Second Amendment may or may not protect, to some degree, a right of a member of the general public to carry firearms in public. But the existence vel non of such a right, and the scope of such a right, are separate from and independent of the question presented here. We hold only that there is no Second Amendment right for members of the general public to carry concealed firearms in public.

Generally, I would say that you need not read any further. The rest of the decision is the mechanism this court arrived at the above.

Reading all of this, you might be thinking that we need an open carry case. you would be forgiven in thinking in those terms. But you couldn't be further from the truth, however.

On page 52 of the opinion, the court agrees with a separate concurring opinion by Judge Graber that signals what the court will do when such a case comes before it (yes, yes. I here some of you screaming about the Nichols case, an open carry case which is now before the 9th Circuit). Let's read what the majority says about Judge Grabers separate concurrence:

Our colleague Judge Graber concurs fully in our opinion, but writes separately "to state that, even if we assume that the Second Amendment applied to the carrying of concealed weapons in public, the provisions at issue would be constitutional." Graber, J., concurrence at 52. Even if we assume that the Second Amendment applies, California's regulation of the carrying of concealed weapons in public survives intermediate scrutiny because it "promotes a substantial government interest that would be achieved less effectively absent the regulation." Id. at 58 (internal quotation marks omitted). For the reasons given in our opinion, we do not need to reach the question addressed by the concurrence. But if we were to reach that question, we would entirely agree with the answer the concurrence provides.

"[P]romotes a substantial government interest that would be achieved less effectively absent the regulation." <-- That is the telegraph whereby the court will decide the question of open carry under CA law.

And that is also what I mean by the breadth of this opinion. It completely reads "bear" out of the text of the amendment. In short, in a State under the jurisdiction of the 9th Circuit, if that State wishes to curtail your right to bear arms, it can do so, with the blessing of the 9th Circuit Court of Appeals.

10-56971 Peruta En Banc Decision.pdf